Judge bars enforcement of Delaware ‘ghost gun’ restrictions

DOVER, Del. (AP) — A federal judge has issued an injunction barring Delaware from enforcing provisions of a new law outlawing the manufacture and possession of homemade “ghost guns,” which can’t be traced by law enforcement officials because they don’t have serial numbers.

Friday’s ruling came in a lawsuit filed by gun rights advocates after Democratic Gov. John Carney signed a law last October criminalizing the possession, manufacture and distribution of such weapons as well as unfinished firearm components.

Judge Maryellen Noreika denied a motion by Democratic state Attorney General Kathleen Jennings, the sole defendant, to dismiss the lawsuit. She instead granted a preliminary injunction in favor of the plaintiffs to prohibit enforcement of certain provisions pending resolution of the lawsuit.

The judge wrote that without an injunction, the plaintiffs would “face irreparable harm ... because they are threatened by criminal penalties should they engage in conduct protected by the Second Amendment.”

While declining to issue a permanent injunction, Noreika said that the plaintiffs are likely to succeed in their arguments that a ban on possessing homemade guns violates the Second Amendment, and that the prohibition on manufacturing untraceable firearms is also likely unconstitutional.

Noreika said Jennings had offered no evidence to support her assertion that the prohibitions don’t burden protected conduct because untraceable firearms are “not in common use and typically possessed by law-abiding citizens for lawful purposes.”

Jennings similarly failed to substantiate her argument that the prohibitions on possession and manufacturing are “consistent with the nation’s historical tradition of firearm regulation.”

At the same time, however, Noreika said restrictions on the distribution of unfinished firearm frames or components do not unduly burden a person’s Second Amendment rights. She noted that such components are still available if they include serial numbers and manufacturer information and are obtained from federally licensed gun dealers.

The judge also held that a provision restricting the distribution of instructions for using a three-dimensional printer to produce a firearm or component is not an unjustifiable regulation of speech under the First Amendment.

“The statute prohibits only the distribution of functional code,” the judge wrote. “It does not prohibit gunsmiths and hobbyists from exchanging information about how to use their 3D-printer to manufacture a firearm, or for instructing individuals on how to program their 3D-printer to make the firearm of their choice.”